G.R. No. 9124, March 25, 1914

Supreme Court of the Philippines
27 Phil. 319
G.R. No. 9124, March 25, 1914

PIO MERCADO, PLAINTIFF AND APPELLANT, VS. MARIA TAN-
LINGCO, DEFENDANT AND APPELLEE.
D E CI S I O N
MORELAND, J.:
This is an appeal from a judgment of the Court of First Instance of
Bulacan entered upon an order sustaining a demurrer to a complaint
and dismissing the cause upon the merits, with costs.
The plaintiff in his complaint alleges that he is the husband of Rita
Raiz Mateo and was at all times mentioned in said complaint; that
on July 19, 1909, the said Rita Raiz Mateo, being then duly and
legally married to said plaintiff, mortgaged to Maria Tan-Lingco
Gonzalez certain parcels of land described in the complaint.
The complaint further shows that said mortgage is illegal inasmuch
as, under the Civil Code, a wife can not mortgage or alienate her
separate property without the consent of her husband. It prays that
said mortgage be set aside, canceled and annulled, and tenders to
the defendant the sum of P2,500, which is the face of the mortgage,
and interest.
The plaintiff incorporates in his complaint the mortgage in question
in which the said wife executing the mortgage makes the following
statement:
"That my husband, Pio Mercado, on the 15th of August,
1905, executed a power in my favor of the following
tenor:
" 'I, Pio Mercado, a resident of the municipality of
Baliwag, Province of Bulacan, Philippine Islands, by
these presents declare: That in accordance with the
provisions of articles 60 and 61 of the Civil Code, I
hereby confer upon my wife, Dona Rita Raiz Mateo, the
marital license necessary for her to appear in suit, by
herself or by means of an attorney, and to perform
whatever acts may be to her interest to perform, and
finally for every purpose which, according to existing
legislation, a married woman is prohibited from doing
without the consent of her husband, hereby ratifying all
her previous acts with regard to contracts since our
marriage.'
"This consent was signed and acknowledged by my
husband on the above-mentioned date before the notary
public of the municipality of Baliwag, and I declare that it
is not revoked but is in full force and effect in all its
parts."
In said mortgage she further asserts that by virtue of said consent,
above quoted, she executes the mortgage in question.
A demurrer was filed to the complaint upon the following grounds:
"1. That the plaintiff has not legal capacity to sue.
"2. That there is a defect or misjoinder of parties.
"3. That the complaint does not state facts sufficient to
constitute a cause of action.
"4. That the complaint is ambiguous, unintelligible, and
vague."
Upon the hearing upon the demurrer argument was confined by the
demurrant to the third and fourth paragraphs of her demurrer.
Resolving the demurrer, the court held that the plaintiff, having
included in his complaint the statement of the wife in the mortgage
that the husband had given his consent to the acts complained of,
and having later in the same complaint alleged that said acts were
performed without his knowledge or consent, the complaint was
uncertain, vague, and unintelligible, the court being unable to
determine which allegation the plaintiff wanted the court to accept.
Upon this ground the demurrer was sustained and the complaint
dismissed after a refusal on the part of the plaintiff to amend.
We are of the opinion that the judgment must be reversed. The
complaint is not vague in the sense in which, the learned court
speaks. The fact that the mortgage, which is attached to and made a
part of the complaint, recites certain facts which, if alleged in the
complaint by the plaintiff would be in contradiction to other
allegations of plaintiff in the same complaint, is not sufficient
ground upon which to find that the complaint is vague and
uncertain. Plaintiff is bound only by the allegations of the complaint
unless the facts set out in the instrument itself as incorporated in the
complaint, are contradictory of the allegations of the complaint. The
recital made by the mortgagor relative to some act performed by a
third person is not in reality a fact set out in the instrument, at least
not in the sense in which the date of the instrument, the names of
the parties thereto, the description of the land therein, and the
amount of the debt secured are facts set out in the instrument. In
other words, we do not understand that the recital of the wife in the
mortgage relative to the husband's consent is, under the
circumstances, an allegation of the complaint.
Article 61 of the Civil Code provides:
"Neither may the wife, without the permission or power
of her husband, acquire property for a good or valuable
consideration, alienate her property or bind herself,
except in the cases and with the limitations established by
law."
Article 1387 of the same Code reads as follows:
"The wife can not alienate, encumber, or mortgage the
paraphernal property without the permission of the
husband, nor appear in court to litigate with regard to the
same, unless she has been judicially authorized for the
purpose."
In the case of Gavieres vs. Administrators (13 Phil. Rep., 449), the
court said:
"It being admitted by the defendant that the plaintiff and
the said mortgagor, Luisa Pena, were husband and wife,
then her right to dispose of the property either conjugal or
paraphernal is governed by the provisions of the Civil
Code, and her right to dispose of the property whether
conjugal or paraphernal does not depend upon her
capacity or incapacity, but upon the will of her husband.
If it should be considered paraphernal property, then
article 1387 of the Civil Code applies and she could not
alienate, encumber, or mortgage it without the permission
of her husband; if it be considered conjugal property,
even then she was equally forbidden by law to dispose of
the same without permission of her husband. (Art. 1416,
Civil Code.)"
The court further says:
"And, moreover, suppose that, under article 7 of the Code
of Commerce, it be presumed that the wife was carrying
on the business with the knowledge of her husband, will
the fact that she has authority to conduct a private
business under said article by presumption be sufficient to
justify her in mortgaging the property used in such private
business? We think not, in view of the provisions of the
Civil Code which absolutely prohibit her from selling or
mortgaging, etc., either the paraphernal or the conjugal
property. We do not believe that the power which is
expressly forbidden by the law can be given by mere
presumption in the absence of an express provision of the
law to that effect. The only exception to the absolute
prohibition on the part of the wife to create liens against
the paraphernal and conjugal property is that found in
article 1408 of the Civil Code. The present case is not one
of the exceptions mentioned in that article."
From the provisions of the Civil Code above quoted and the
exposition made thereof by the Supreme Court in the case above
cited, it is clear that the plaintiff, admitting the allegations of the
complaint to be true, is entitled to have the mortgage set aside.
The judgment appealed from is reversed and the cause remanded to
the court whence it came, that the same may be continued in the
form and manner prescribed by law.
Arellano, C. J., Carson, Trent, and Araullo, JJ., concur.
Judgment reversed; cause remanded.
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Supreme Court of the Philippines

G.R. No. 9124, March 25, 1914

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